Dalhousie Law Journal


legal history, maritimes, Amerindians, resources, land, aboriginals, Ottawa


In the half-century ending about the time of Confederation a dozen writers addressed awkward questions about an earlier generation's dispossession of Maritime Amerindians from land and resources: had it been lawful; if so, how; if not, what should be done? In the main they approached it as an abstract question, divorced from those particulars of local history that would become the focus of late-20th-century investigation. Those who theorized that English tradition made dispossession lawful did so with reference to the doctrine of "discovery" or to the proposition, grounded in Locke and accepted widely in colonial public opinion, thatAmerindian possession of any particular spot had been too casual to give rise to a property right. Those who argued the illegality of Amerindian dispossession, the most insistent of whom was S. T. Rand, pointed out that colonials themselves did not act consistently with the Lockean "agricultural" argument and that indicia of ancient aboriginal territorial possession were overwhelming. Maritime discussion of the issue seems to have ended in the 1860s, when jurisdiction over Amerindian affairs was transferred to the new federal administration at Ottawa.